JUDGMENT : 1. Heard Mr. M.J.Mehta, learned advocate, for Mr. Kariel, learned advocate for the petitioner and Mr. Patel, learned advocate for the respondent No.1. 2. In this petition, the petitioner original claimant before the learned Labour Court has challenged the award dated 13.8.2014 passed by learned Labour Court in Reference (LCJ) No.53 of 2008 whereby the learned Labour Court, after having reached to the conclusion that the service of the petitioner was terminated illegally and the company committed breach of Section 25F, directed the company to pay lump sum compensation in sum of Rs.35,000/-. 2.1 The petitioner original claimant is aggrieved with the award because the learned Labour Court, even after holding that the termination was illegal, did not grant relief of reinstatement and backwages. 3. So far as factual background is concerned, it has emerged from the record that the petitioner herein (i.e. the original claimant) raised industrial dispute with the allegation that his employer (i.e. the respondent herein) illegally terminated his service w.e.f. 1.3.2008. The appropriate government referred the said dispute for adjudication to learned Labour Court at Jamnagar vide order of reference dated 4.7.2008. The said dispute came to be registered as Reference (LCJ) No.53 of 2008. 3.1 Before the learned Labour Court the claimant filed his statement of claim wherein he alleged and asserted that he was working with the opponent company since last 10 years and the company terminated his service without following procedure prescribed by law and in violation of principles of natural justice. He alleged that at the time when his service came to be terminated, he was drawing salary at Rs.4,725/- and that he had worked continuously for 10 years and in each year he worked for more than 240 days and despite such facts, the company illegally terminated his service. With such allegation, the petitioner original claimant demanded that he should be reinstated with all benefits. 3.2 The opponent company opposed the reference. The company, in its reply, denied the allegations. The company denied that the claimant was employed since last 10 years or that his service was terminated illegally and without following any procedure. The company claimed that it was the claimant who stopped reporting for work and that the company had never terminated his service. The company, in its reply, denied the allegations. The company denied that the claimant was employed since last 10 years or that his service was terminated illegally and without following any procedure. The company claimed that it was the claimant who stopped reporting for work and that the company had never terminated his service. The company also claimed that after the claimant stopped reporting for duty, the company had issued notice but the envelope could not be served and the postal authority returned the said envelope. The company also claimed that the workman was asked to report for duty, however, he did not report for duty. The company also alleged that the workman had secured another employment with higher salary and therefore, he voluntarily abandoned the service. After the parties concluded the pleadings, the learned Labour Court received documentary evidence from both sides. The claimant placed on record various documents including the entry permit issued by the company as well as pay slips from January 2007 to February 2008. 3.3 On the other hand, the company placed on record a RPAD slip dated 10.3.2008 and copy of the reply given by the company in response to the notice issued by the workman. 3.4 The workman got his deposition recorded. He did not examine any other witness. The company examined one Mr. K.J.Mehta as its witness. 3.5 After considering the material available on record and the submissions by learned advocates of the contesting parties, the learned Labour Court reached to the conclusion that the company illegally terminated service of the claimant. The learned Labour Court also recorded specific finding that the company committed breach of Section 25F. The learned Labour Court also recorded specific observation that because of the action of the company, the claimant had to suffer difficulties and mental agony for almost 5 to 6 years. Having recorded such findings, the learned Labour Court awarded lump sum compensation to the tune of Rs.35,000/-, however, did not grant relief of reinstatement with all benefits. Feeling aggrieved by such award, the claimant is before this Court. 4. Learned advocate for the petitioner claimant assailed the award. He submitted that the claimant worked with the company for 10 years and that in each year, the claimant had worked for more than 240 days. Feeling aggrieved by such award, the claimant is before this Court. 4. Learned advocate for the petitioner claimant assailed the award. He submitted that the claimant worked with the company for 10 years and that in each year, the claimant had worked for more than 240 days. He also submitted that the claimant was a permanent workman and work which he performed was permanent and perennial work of the company. He submitted that the respondent did not follow any procedure before terminating the petitioner's service and abruptly terminated the petitioner on 1.3.2008 by oral order. According to learned advocate for the petitioner, the respondent terminated the workman without following any procedure and in breach of Section 25F as well as in violation of principles of natural justice. He further submitted that despite the fact that learned Labour Court reached to the conclusion that the company committed breach of Section 25F, the learned Labour Court erroneously and arbitrarily did not grant relief of reinstatement and awarded only Rs.35,000/- as lump sum compensation. According to learned advocate for the petitioner claimant, the award passed by the learned Labour Court is arbitrary, erroneous and contrary to decision by Hon'ble Apex Court in case of Jasmer Singh v. State of Haryana & Anr. [ (2015) 4 SCC 458 ]. 5. The submission by learned advocate for the petitioner are opposed by learned advocate for the respondent company. He submitted that the petitioner did not serve with the company for 10 years. He submitted that the claimant had worked hardly for 2 to 3 years. He also submitted that the company had not terminated the service of the claimant and it was the claimant who voluntarily abandoned the service. Learned advocate for the respondent company submitted that the petitioner failed to establish that he had worked with the company for 10 years. Learned advocate for the respondent company also claimed that the company had issued notice to the workman, however, the envelope could not be served and it was returned by the postal authorities. According to learned advocate for the respondent company, the learned Labour Court has not committed any error and therefore, the petition should be rejected. Learned advocate for the respondent company relied on the decision in case of Senior Superintendent Telegraph (Traffic), Bhopal v. Santosh Kumar Seal & Ors. [ (2010) 6 SCC 773 ]. 6. According to learned advocate for the respondent company, the learned Labour Court has not committed any error and therefore, the petition should be rejected. Learned advocate for the respondent company relied on the decision in case of Senior Superintendent Telegraph (Traffic), Bhopal v. Santosh Kumar Seal & Ors. [ (2010) 6 SCC 773 ]. 6. I have considered rival submissions and material available on record. I have also examined the award passed by learned Labour Court as well as the reply affidavit filed by the respondent company. 7. At the outset, it is relevant to mention that the company has not challenged the award. Not only this, according to learned advocate for the respondent company, the award does not suffer from any infirmity. 7.1 Interestingly, rather curiously, though, according to the company, the award is just and does not suffer from any error, it has not complied the award. The meager amount of Rs.35,000/- awarded by the learned Labour Court towards lump sum compensation is not paid by the company. 7.2 Another relevant aspect required to be taken note of and mentioned at this stage is that though the company claimed, in its reply/ written statement, that it had not terminated service of the workman and despite the fact that the company claim that it had even issued notice to the workman asking him to report for duty, no where in the reply / written statement company declared that the workman may report for duty if he so desires. 7.3 The company also did not file any application before the learned Labour Court with a request that the workman may be directed to report for duty if he was interested in working with the company. 7.4 Further, it is also relevant to note at this stage that though the company claimed that according to its information the workman had secured employment with another establishment at higher salary, the company failed to give any details about the alleged employment of the workman. The company did not give name of the company – establishment where the claimant was allegedly working. 7.5 Not only this, the company also failed to place any material on record to establish that the workman was actually gainfully engaged in any other establishment after March 2008 and at the time when the proceedings were pending before the learned Labour Court. 7.5 Not only this, the company also failed to place any material on record to establish that the workman was actually gainfully engaged in any other establishment after March 2008 and at the time when the proceedings were pending before the learned Labour Court. 7.6 Even during the deposition, the company's witness did not declare before the learned Labour Court that the workman may report for duty if he so desires. 7.7 The award passed by the learned Labour Court deserves to be examined in light of above specific features of present case. 8. Besides this, it is also relevant to take into account the evidence of the workman before the learned Labour Court. 8.1 The learned Labour Court has exhaustively recorded the details of evidence (deposition) by both sides. 8.2 In his deposition before learned Labour Court, the claimant specifically asserted that(a) he was working with the company since 10 years;(b) the company terminated his service with oral instruction and without following any procedure and in violation of principles of natural justice; (c) at the time when the company terminated his service he was paid salary of Rs.4725/-; (d)the company did not issue attendance card; (e) he worked for more than 240 days in each year (f) at the time when his service was terminated the company had not prepared and displayed seniority list (g) when his service came to be terminated, the persons junior to him were continued in service and subsequently other persons / new employees were engaged. 8.3 From the said evidence by the workman it comes out that (a) the company had not issued any appointment order to the petitioner and (b) the company was not issuing attendance card. Thus, the workman would not have any document to support his claim about his work, however, he placed on record his pay-slip. 8.4 In view of the fact that the workman placed on record pay slip for the period from January 2007 to February 2008, two important facts were established viz. (1) that the petitioner was employed by the company and he was paid salary by the company (b) that during period from January 2007 to February 2008 the petitioner undisputedly served for atleast 13 months. (1) that the petitioner was employed by the company and he was paid salary by the company (b) that during period from January 2007 to February 2008 the petitioner undisputedly served for atleast 13 months. 8.5 On the other hand, the witness of the company claimed, in his evidence that (a) workman had not worked for 10 years as alleged by him (b) the workman voluntarily left service and stopped reporting for work (c) company did not terminate the service of the workman (d) the workman has, allegedly, secured employment with other employer with higher salary therefore he stopped reporting for duty (e) though he raised such allegation, but he did not place any material or detail on record to establish that the workman had actually secured another employment. The said witness did not even mention the name of establishment where the workman according to the allegation of the witness, secured another employment (f) the company had issued chargesheet but that was not served to the workman and postal authority had returned the post and inquiry in pursuance of charge sheet was never initiated/conducted (g) that a notice asking the petitioner to report for work was issued. 8.6 On the contrary after examining the postal cover, labour Court has recorded specific finding that the postal authority put remarks to the effect that “due to incomplete address of the addressee the post could not have served hence returned”. 8.7 From the said observation, it comes out that the company had not mentioned complete address of the workman. The said facts give reason to the Court to believe that the company created smokescreen by forwarding post with incomplete address, only to claim, that the company had even issued chargesheet to the workman. However, the company never intended to serve the charge sheet or to conduct regular and formal inquiry. The learned Labour Court found above mentioned aspects from the postal authority's remarks. 8.8 Thus, the said defence set up by the company does not render any assistance or support to the company. Besides this it is not even the case of the company that in pursuance of the said chargesheet it had conducted ex-parte inquiry. Undisputedly the domestic inquiry was also not conducted and opportunity of hearing and defence was not given to the workman. Besides this it is not even the case of the company that in pursuance of the said chargesheet it had conducted ex-parte inquiry. Undisputedly the domestic inquiry was also not conducted and opportunity of hearing and defence was not given to the workman. 8.9 It is not the case even of the company that it had followed procedure prescribed for retrenchment. 8.10 Even learned labour Court has reached to the findings and recorded the conclusion that, (a) the termination was illegal; (b) the company committed breach of Section 25(f); (c) the said findings have not been disputed or challenged by the company and the company has accepted the award; (d) thus, the company has also accepted consequential findings that the termination was illegal and it had committed breach of Section 25F of I.D. Act. 8.11 In this background and in light of the fact that the company had undisputedly not issued appointment order and it was also not issuing attendance card and also in light of the fact that the company failed to place on record the document which would be available exclusively in its possession, the case of the company that the claimant had not worked for 10 years and/or that he had not worked for 240 days in any year and in any preceeding 12 months, cannot be accepted. 8.12 When it was established before the learned labour Court that neither attendance card was issued nor appointment order was issued and when it is also apparent that the company did not place on record the documents which were exclusively in hits possession, then such contention by the company cannot be sustained. 8.13 Further, the learned Labour Court has recorded specific finding that the documents available on record established that the workman had worked for more than 240 days during preceding 12 months. 9. As mentioned above even said finding of fact by learned Labour Court is not challenged by the company. 9.1 Under the circumstances, now there is no scope for the company to claim that workman failed to establish that he had worked for more than 240 days in preceeding 12 months. 10. When the aspects mentioned above are taken into account then it becomes clear that the learned Labour Court is right in its conclusion that the company illegally terminated service of the claimant and had committed breach of Section 25F. 10. When the aspects mentioned above are taken into account then it becomes clear that the learned Labour Court is right in its conclusion that the company illegally terminated service of the claimant and had committed breach of Section 25F. 10.1 When the said findings are not challenged by the company there is no need for further deliberation or discussion on the said issue. 11. This leaves behind the petitioner's contention that when illegality of termination is established and even accepted by learned Labour Court, final decision by learned Labour Court of awarding lump sum compensation is not justified. 12. From the material on record it has emerged that the claimant had worked for long time with the company and without any reason or justification or without any fault on part of the claimant the company illegally terminated service of the claimant. 13. At this stage it would be appropriate to take into account the observation by Hon'ble Apex Court in case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) (2013) 10 SCC 324 whereby Hon’ble Apex Court has observed that:- 38.1 In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2 The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. 38.3 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 38.5 The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer’s obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 38.6 In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees.” 14. In the decision in case of M/s. Hindustan Tin Works Pvt. Ltd. v. Employees of M/s. Hindustan Tin Works Pvt. Ltd. [ AIR 1979 SC 75 ], Hon'ble Apex Court has observed inter alia, that:- “9. ...Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full backs except to the extent he was gainfully employed during the enforced idleness. That is the normal rule.” 15. From the said observation it comes out that when the learned Labour Court recorded conclusion that the termination was illegal, then in that event the direction to reinstate the claimant would be normal and ordinary rule, unless the company could make out exception and strong case that the direction to reinstate the workman is incapable of being implemented on account of closure of the establishment or any other similar reason. 15.1 In present case not only company has not claimed that reinstatement is incapable of being implemented, on the contrary the company claimed that it has not terminated service of the claimant. 15.2 Any ground to oppose the direction to reinstate the claimant is not made out. 15.1 In present case not only company has not claimed that reinstatement is incapable of being implemented, on the contrary the company claimed that it has not terminated service of the claimant. 15.2 Any ground to oppose the direction to reinstate the claimant is not made out. 15.3 Any circumstances to convince the Court that reinstatement may not be granted is not established before learned Labour Court nor even before this Court. 15.4 The petitioner's specific allegation before learned Labour Court that persons junior to him were continued in service and fresh appointments were also made, have not been even denied by the company's witness. 16. In this view of the matter this Court is of the considered view that there is no justification to decline the petitioner's claim and right of being reinstated in service. 17. So far as claimant's demand for consequential benefits is concerned, it is necessary to note that total length of service of the claimant is in gray area. Besides this, the period of pendency of the proceedings before the Court is about 5 to 6 years. The respondent on the other hand, failed to place any material on record to establish that the petitioner was gainfully employed during the period in question. The last drawn salary of the petitioner is established in view of the fact that the petitioner had placed on record pay slip. When all these aspects are taken into account it appears that lump sum amount in lieu of backwages would be proper and appropriate direction in present case. 18. Having regard to the foregoing discussion following order is passed:- [a] The award 13.8.2014 passed in Reference (LCJ) No. 53 of 2008 is set aside. [b] The company is directed to reinstate the claimant with continuity of service. [c] With regard to backwages, company is directed to pay Rs.25,000/- as lump sum compensation for loss of wages from date of termination until now and also for the reason that for almost 3½ years the company did not comply the award and did not pay the amount of compensation despite the fact that company never challenged award. With the aforesaid clarification and direction, the petition is allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.